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Punishment as a Last Resort

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Lawmakers at the House of Representatives insist on passing the draft Criminal Code Bill (RKUHP) during the final days of their 2014-2019 term. Many deem that the draft bill is even worse than the current Criminal Code (KUHP).

The criticism must be viewed within the historical context of the current KUHP, which is a colonial legacy of the Dutch East India government, derived from the 1918 Wetboek van Strafrecht voor Nederlandsch-Indie. The KUHP was passed under Law No. 73/1958 on the Enactment of Law No. 1/1946 on the Amendments to the Criminal Code for All Territories of the Republic of Indonesia.

The House says that it is time to pass the Criminal Code Bill, which the House and the government have been deliberating for four years. The 2014-2019legislative session ends on 24 Sept. The RKUHP, which comprises two volumes and 627 articles, has been disseminated to the public several times. The plan to amend the Criminal Code can be traced back to 1973. However, it must be acknowledged that not many people, including academicians and criminal code observers, are aware of the RKUHP, even today.
As Kompas reported on Saturday (14/9/2019), the House and the government have been deliberating seven critical points in the RKUHP: capital punishment, customary law, contempt of the president, public decency, special crimes, transitional provisions and closing provisions. Of these, two points – contempt of the president and public decency – are still under deliberation.
The House aims to make a final decision on the matter within this week and hopes that the public will accept the new Criminal Code. However, public opinion so far has indicated the opposite.
Meanwhile, there are concerns that the stipulation on public decency will curb individual rights and increase the threat of punishment for the general public.
For instance, the Constitutional Court (MK) had revoked the article on contempt of the president – haatzaai artikelen (sowing hate) – in 2006, but the article still appears in the RKUHP. Meanwhile, there are concerns that the stipulation on public decency will curb individual rights and increase the threat of punishment for the general public.
Criminal punishment must be a last resort, ultimum remedium, in public administration. It is important for the government and the people’s representatives to pay more heed to the voice of the people. Even though the House and the government may have the authority to make laws, sovereignty lies in the hands of the people. The people must not feel that they are unheard. The public feels that the criminal punishment is harsh, because it can take away their basic rights. People can be sent to prison or even face the death sentence if they violate the law. Punishment must also be a deterrent.
Kompas/Wawan H Prabowo
Members of the Civil Alliance for Democratic Justice take part in a rally on Sunday (15/9/2019) at the Hotel Indonesia traffic circle in Central Jakarta. They have called on the people to reject the Criminal Code Bill (RKUHP), which they say contain problematic articles that pose a threat to democracy.
The deliberation of the RKUHP must consider the current social dynamics, including at the global level. The Netherlands in 1983 abolished capital punishment, which had been used for war crimes since 1870. In Indonesia, capital punishment has not had the intended deterrent effect in crimes such as narcotics or terrorism. There must be another way. There is still time for the 2014-2019 lawmakers, a majority of whom has been reelected, to continue deliberating the RKUHP. Such a large and significant undertaking must not go to waste by ending up at the Constitutional Court.

Editor:
naranasrullah

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